Delegation, Unilateral Executive Authority and the Decline of Democracy

In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy.  While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature.  This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.

Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies.  According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control.  A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”

The description, which seems somewhat accurate, is deeply concerning because of the current polarization in the United States and the claims of executive authority by the Obama Administration.  To be clear, I’m not claiming that Obama is a dictator.  But Obama has made aggressive assertions of executive authority.  And most concerning, Obama has sought to justify these actions on the ground that the Congress has been too divided or hostile to his policies to pass legislation authorizing his actions.  While the two Bushes and Bill Clinton exercised significant executive authority, I do not remember their justifying their actions on the ground that the legislature was too divided to provide them with the authority, so they would act on their own.  As Lucas’s quote indicates, that is dangerous.

More problematically, it is not merely that a divided and ineffectual legislature can lead to assertions of executive authority.  It is also that the causation runs in the opposite direction as well — delegations and assertions of executive authority can lead to a divided and ineffectual legislature.  If the executive cannot be given delegated authority and can only act with specific legislature authority, then the legislature must compromise to get anything done.  This circumstance provides the incentive for the lawmakers, including the President with his veto authority, to compromise.  That is a good thing.

But if the President has received delegated authority or can otherwise act unilaterally, things work differently.  Then the President has little incentive to compromise with the legislature and instead will assert a far more extreme executive policy.  In fact, if the legislature seeks to work out a compromise, he is likely to veto the bill.  Thus, delegations will lead to a divided and ineffectual legislature — and to more extreme policy.

This is a troubling circumstance.  By itself, it has not led to dictatorship.  But it has led a less healthy republic.  And if other destabilizing circumstances arise — such as serious military challenges or economic crises — one can imagine Presidential authority being taken several steps farther in the direction of dictatorship.  This is a serious matter that should not be taken lightly.